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Very good point Warren. JWR’s contemporary notes on what her COS told her about her conversation with Gerald Butts:
“My COS asked what if the opinion (CJ Beverley Mclachlin) comes back saying “she can review it, but she shouldn’t” or, simply “she can’t review it”. Butt’s reply: “IT WOULDN’T SAY THAT”. Either Butts had a chrystal ball, or already knew the CJ’s response.

I don’t get worked up about this as much as some people. Retired SCC justices are eminent legal minds but their opinions aren’t fool-proof. Take for instance Harper’s Nadon legal opinion: IMHO, Harper’s mistake wasn’t nominating Nadon and amending the SCA to allow for FC justices from Quebec to sit on that bench. Rather, it was the way the SCA was modified. In other words, they didn’t get it right technically, so voilà.

Here’s something else: it’s an interesting wrinkle to consider whether an appellate level justice should proffer legal opinions to an entity with strictly private interests, as two seemingly did for SNC-L.

It’s one thing to do so in the national interest in advising one of our three orders of government. It’s entire quite another matter to do so in the service of private interests, corporate or otherwise. In my book, that crosses a red-line that apparently some retired justices have not sufficiently seriously considered.

It was clear on Twitter that they had spoken to B. MacLachlin first, found out she didn’t want to be retained by the PMO – and then they thought they’d see if JWR could get a different opinion. Didn’t work.